In 2013, U.S. and Russian negotiators are expected to enter the next frontier in nuclear arms control: regulating small, “tactical” nuclear weapons. This framework article will be the first squarely on the subject in the legal literature. My core arguments are that (1) to date the bilateral Washington-Moscow arms control legal regime has primarily regulated strategic (i.e., long-range) nuclear delivery vehicles (bombers, missiles, and submarines) rather than warheads; (2) contrary to common assertion, the legal regime has regulated a small number of tactical systems – tactical delivery vehicles (jet fighters and other short-range systems) with arguable strategic relevance – providing a regulatory precedent; (3) the nuclear tactical/strategic distinction in Cold War policy and the legal architecture is eroding and should be abolished, and (4) with all nuclear weapons considered “strategic,” and in view of the enduring “loose nuke” threat and other risks, the arms control legal regime should be expanded to regulate and reduce what we now consider tactical nuclear arms, ideally via the new treaty I outline.

Extension of the legal regime to regulate all tactical delivery vehicles and (especially) warheads would be revolutionary. Warheads are much smaller than nuclear delivery vehicles, which can be readily observed from space. Warheads are therefore easier to conceal or steal, and present unique verification challenges.

Resolution of the verification problem in a new treaty will be tough. But it also presents an opportunity: creation of what I term Nuclear Information Stability (NIS) between the United States and Russia, a condition characterized by continual communication and common understanding of the number, location, and operational status of nuclear delivery vehicles and warheads. Ultimately, I argue, NIS could allow the United States and Russia – and other nuclear states to which the concept could be exported – to see a realistic path from Mutually Assured Destruction (MAD) to a day-to-day state of Mutually Assured Stability.

The article discusses the Vesting Clause Theorists’ claim that the British constitution of 1787 can be considered the baseline against which the Framers defined the "executive power" granted by Article II of the Constitution of the United States. While this is the best argument still remaining for the conception of broad presidential powers that they advance, it is profoundly misguided, as it necessarily relies upon a fatal misunderstanding of seventeenth and eighteenth century English (and British) constitutional history.

It details that the monarchy had lost the powers the vesting clause theorists posit to be the model for the president’s long before the framing, owing to the movement towards parliamentary supremacy and the creation of a cabinet responsible to Parliament. As the article shows, this was clear to the revolutionary generation, who accordingly could not have believed that royal powers could serve as a useful baseline for those of a president. More importantly, it demonstrates how this process of constitutional change in eighteenth century Britain destabilized the notion of executive power, such that there was no undisputed, commonsensical definition: executive power was an essentially contested concept by 1787.

The article posits further that to understand the original scope of presidential powers, one must grasp that the key feature of American political thought during the American Revolution was that it was a reaction against developments in eighteenth century British constitutional theory. The Founding Fathers drew deeply from seventeenth century constitutionalism, inheriting a deep distrust of strong executive powers. The article’s historical analysis demonstrates that the arguments of Vesting Clause Theorists (such as John Yoo) resemble the defenders of absolutism that the Framers’ abhorred, and are therefore in many significant respects antithetical to the fundamental political ideals that defined the intellectual context

Military Commissions and the Paradigm of Prevention, in GUANTANAMO AND BEYOND: EXCEPTIONAL COURTS AND MILITARY COMMISSIONS IN AND POLICY PERSPECTIVES (Oren Gross and Fionnuala Ni Aolain, eds., Cambridge: Cambridge Univ. Press, 2013, Forthcoming)

Why military commissions? Given the United States’s track record of success in trying terrorists in civilian criminal courts, and the availability of courts-martial to try war crimes, why has the United States government, under both the George W. Bush and Barack Obama administrations alike, insisted on proceeding through untested military commissions instead? In May 2009, President Obama defended military commissions with the following claims:

Military commissions have a history in the United States dating back to George Washington and the Revolutionary War. They are an appropriate venue for trying detainees for violations of the laws of war. They allow for the protection of sensitive sources and methods of intelligence-gathering; they allow for the safety and security of participants; and for the presentation of evidence gathered from the battlefield that cannot always be effectively presented in federal courts.

Do these justifications warrant the use of military commissions? In this essay, I maintain that they do not. In the end, the impetus behind the military commissions is the hope – in my view, unsupported – that the commissions may permit easier convictions of individuals, and may allow prosecutors to avoid confronting the consequences of the United States’ systemic reliance on torture and cruel, inhuman, and degrading tactics in its interrogations of detainees. In this respect, the commissions are best understood not as a legitimate forum for trying war crimes, but as an avenue for short-circuiting legal processes that might hold us accountable for our wrongs.

The military commissions are a by-product of the “paradigm of prevention,” a term coined by then Attorney General John Ashcroft for the post-9/11 emphasis on aggressively preventing future terrorism, rather than responding to crime after the fact. That approach stressed early intervention and aggressive gathering of intelligence about future threats, and therefore led government officials to sweep broadly, presume guilt without substantial evidence, detain innocents, and adopt “enhanced interrogation techniques” to coerce detainees into talking. Those choices, in turn, have greatly complicated and compromised the task of holding terrorists accountable, because such illegal shortcuts on investigatory rules taint any evidence obtained therefrom, and make it inadmissible in a criminal trial.

The military commissions reflect an ill-advised effort to avoid paying the price for the “paradigm of prevention.” That goal is an illegitimate one, and will in the end leave the commissions – and any convictions obtained in them – fundamentally tainted. Absent a willingness both to reckon candidly with the United States’ own past wrongs, and to proceed in the future under fundamentally fair trial procedures, the military commissions are likely to disserve our security interests and undermine our constitutional principles.

This article does a thought experiment to suggest the limits of the United States President’s Constitutional Powers regarding Armed Conflict. It then examines how state criminal prosecution (as opposed to federal criminal prosecution or impeachment) might be an avenue in United States separation of powers and federalism to seek accountability for Presidents who act outside the limits of the powers available constitutionally and even with a Congressional grant of powers.